Flexible work request - procedure not followed

[HungryHorace]

I submitted my flexible work request to my employer and we had the meeting on Monday 23rd December to discuss my request.

My change of hours (short lunch / leave early) was agreed, but my request to work from home 2 days a week wasn't greeted with enthusiasm (I'd already been told informally it really wasn't likely to happen).

Anyway, at the end of the meeting the HR manager said that they would come back to me within the requisite 28 days with a decision. I'd already researched this and knew it was 14 days, but said nothing at the time.

We're now 14 days later and no response so I have a few questions for those in the know:

1. Do the bank holidays over Christmas extend the 14 days or would the extension only be available if I'd agreed to it?
2. Assuming they are going to say no (which I think they are) am I best to keep my powder dry, as it were, until after the appeal / decision in relation to calling them on not following procedure? (I have good arguments, even if they use one of the 8 grounds available to them.)

I've read that I could lodge a grievance now, but if procedure isn't followed I can challenge the decision at the end of the process due to this.

I don't go back from mat leave until March and as I'm pregnant again, I won't actually be back for long before heading off again. The chances of me going back after the second mat leave are exceptionally slim.

I'm already persona non grata for getting pregnant on mat leave, so I'm not really bothered if I piss them off more! What's my best course of action?

[KnackeredCow]

1. If your manager was at work when your request was received, my understanding is the extension is only available if you agree to it.
2. Absolutely keep quiet. I was advised on here to remind my manager. Biggest mistake ever. It turned out subsequently he'd overseen one of my direct report's requests for flexible working whilst I'd been on mat leave (and refused it - sadly, against my advice as departmental head- she was forced to resign as a result) so was fully aware of the procedure. I then reminded him (following advice I got here "because the rules are complicated" - in retrospect he knew damn well what they were) and he responded a few hours out of time. Because of a lot of stuff that had happened (including my colleague's dismissal) I am going to Employment Tribunal for unfair constructive dismissal and indirect sex discrimination. Sadly because I "reminded" my employer of the rules (which I found out he subsequently damn well knew but was trying to pretend he didn't), he messed me around and "just missed the deadline". I was told that for "just missing the deadline" It'd be unlikely that I'd win a case for breach of procedure (so I omitted it from my ET claim).

If you think your employer will not properly consider your FW request to the point you are forced to resign then I would absolutely not alert then to any breaches of procedure. It's their responsibility, not yours.

[MrsShrek3]

Play by the book. Which means that no you don't remind or highlight anything. If you end up with a tribunal or going for constructive dismissal, you need a solid case of dates, actions and omissions. And you want them to fall in every trap that a "reasonable employer" would. Good luck.

[HungryHorace]

Ok, I'll play dumb and just wait for them to respond to me. :-)

2 weeks isn't that long, I suppose, so we shall see how much more of their made up 28 day time period they take to come back to me.

Thank you. :-)

[MrsShrek3]

am sure you're doing it already, but make sure you put every bit of it in your diary

[HungryHorace]

Oh, I will. :-)

They're only a touch late responding for now, but as they've not even sent me the minutes to sign off yet who knows how long they will take. I'm expecting a 28th day response, seeing as that's how long they told me they had to respond.

I'll be back at work before it's sorted by the look of it.

[KnackeredCow]

You don't have to sign off the minutes. They still have an obligation to notify you of the outcome of your request / appeal within time. The only reason I can see that they'd ask you to agree minutes is because they plan to refuse your request. My employer did the same. I agreed the first set (from my initial meeting), and they manipulated what I'd said and used it to refuse my request. I got wise to this for my appeal meeting. The minutes from this had discrepancies that I corrected, but they wouldn't accept my amendments and so I refused to accept the minutes. They tried to argue they couldn't notify me of the outcome until I accepted, but this is utter rubbish. Stand your ground.

They have 14 days from the date of the meeting to discuss your request, not 28, to notify you.

My employer has just had their ET3 (defence to my employment tribunal ET1 claim) struck out. They missed the deadline by a day (they missed every deadline to respond to
me during my application process by a day). They appealed to the tribunal but the judge has reiterated that they are out of time. What goes around comes around.

As I said, it's their responsibility to know the deadline. Ignorance isn't an acceptable defence.

Good luck!

[HungryHorace]

That's interesting, because she specifically told me I'd have to agree the minutes. No sign of them, or a decision, yet. I thought it'd arrived, but it was just notification of a pay rise, which was nice. Still, they're 3 days out of time now.

What grounds are you making a claim under, by the way?

Was their defence struck out purely on the basis of their late response?

It's fascinating to hear other people's experiences.

[KnackeredCow]

I'm making my claim for indirect sex discrimination because they've applied a provision, criterion or practice stating my role can only be done full time over five days. I'm also claiming unfair constructive dismissal.

Under flexible working legislation the tribunal can only examine whether the facts used to apply the business grounds are accurate, but under the equality act the tribunal can examine whether applying the grounds is justified - ie is it a proportionate means of achieving a legitimate aim.

Yes, not accepted for being out of time.

[HungryHorace]

Thank you for letting me know. :-)

I just wish they'd respond to me so I knew what they were thinking. I've no doubt it'll be a no though, from their awkward attitude at the meeting.

What happens next with your claim? Are you hoping for an agreed settlement without a hearing?

[KnackeredCow]

The waiting is awful, isn't it? Hate to put a downer on it but I suspect the reason they are taking so long is they are trying to justify refusing you. If they were going to accept then it would be a straightforward variation on contract. It takes a bit more time to write a refusal letter . Pressurising you to sign off minutes rings alarm bells too.

What I want is a declaration that I was, in fact, discriminated against. My case has been dragged out since May (I only went on mat leave in Jan - wanted to give them loads of notice to work out how we could accommodate reduced hours) that I don't think I'd accept a settlement now. I lost my career, and although I've been to interviews since, haven't managed to find a job . I'm finding things tough, emotionally, and a settlement isn't going to give me what I really need, which is a public acknowledgement of how I've been treated, and an apology.

[HungryHorace]

Well I hope you get what you want. It sounds like one hell of a fight.

Good luck. :-)

And I think you're right. Either that or they've done bugger all with it and will dig it out of a drawer on their made up deadline of day 28! But what you are suggesting is more likely.

[scooby26]

Have you heard anything yet hungryhorace? I submitted one 5 jan and not even had an acknowledge,net reply yet.....

[HungryHorace]

I've literally just had a response rejecting it in the last half hour, 8 days late.

I'm just trying to work out how to respond against their reasoning as it could be difficult to argue they are wrong, but I think I have to appeal because the procedure wasn't followed. Hmmm...

Still early days to respond to you, scooby. I didn't get an acknowledgment, just a letter regarding the meeting after 2 weeks!

[KnackeredCow]

Absolutely appeal. If it is difficult to argue against then their refusal may be legitimate regardless of breach of procedure. It is worth going through the appeal process in full before you decide what to do long term.

[HungryHorace]

They have to reconsider if they've breached procedure, I think. So I'll have to appeal. I just need to formulate my argument.

I can see their point, but I also know that I can do the job from home too, whatever they think (they've decided I'm thick and need constant supervision!).

I've told them I'm taking advice before going back to them.

[bella411]

I'm in a similar situation in regards to flexible hours on return to work after maternity leave.

I had initial meeting with my manager on 5th Dec and he and the form I signed in regards to return date and hours said I would be informed of a decision in 14 days,manager has also said he would ring me before Xmas if any problems. I had had no letter, phone call so was hoping all was agreed. However only this Tuesday, my new manager called me to negotiate the hours/ days I had put forward.

I spoke to my union rep who said not to mention the 14 days, but if didn't get my way to use it as part of my appeal. Though this doesn't make sense to me, if I'm honest.

[HungryHorace]

I'm not sure about using it as part of the appeal, I think you raise it at the end of the process.

I'm doing my appeal letter today, but know this is going to run and run. :-/

[bella411]

My request for flexible working has been declined, as they are saying I have to work a saturday, when I have no child care and had already moved my hours to work on their busiest week days, where I do have child care and even if dd is ill I would still be able to come into work.

[scooby26]

Still no official reply yet, not been called in to discuss and it's day 21 now and I'm away on a course next week (kit days) so its physically impossible to meet to discuss within 28 days and any extension I have to agree- which I won't at this late stage just to allow them to comply when they've had 3 weeks and they can't be arsed! - if of course they deign to contact me!

Hmm,,


I have had an email from my direct boss saying senior boss has refused (shouldn't have gone to him til after any discussion) and it's gone to hr to find me something.... Basically says bye bye ur not mine anymore and wipes his hands....

So no following any policy here.... Unless they pull it out of the bag this week and give me a start date/location on the hours I need... I believe if it's agreed then no discussion required if they tell me within 28 days?

Due back 4 weeks today.......

[scooby26]

Hungry Horace.... I believe by breaching process it's a straight forward ET case...but doesn't give you hours you need just tells them off so they might not do it again...

Could become indirect discrimination for refusal if no business case...as most applications are by women...

My dept has decided apparently that demand doesn't allow ( no resilience) despite me working the same no of hours last year til I was 3mths pregnant.... And no change in demand or staffing at my level,..

[HungryHorace]

I was allowed to work from home while pregnant too. Now it would apparently affect performance.

Sending my appeal this weekend. Thought I'd let them think they'd got away with it for a while!

Scooby, so they've not followed the process either. How crap are these firms?!

[HungryHorace]

Just sent my appeal letter to them...I bet they thought I had given up as tomorrow is my deadline!

I can't wait til I get to surprise them at the end with my grievance regarding procedure. :-)

[HungryHorace]

Well, I've got my appeal meeting today.

I've just had the notes from the previous meeting emailed to me with an apology for not providing them before.

They also asked if I wanted to postpone today's meeting due to not supplying the notes before.

And...an apology for the oversight in replying late following the last meeting. Apparently it wasn't deliberate.

Obviously this doesn't change the fact it was a late response, but does it give me more bargaining power in the meeting? Or should I keep quiet on the fact I know I could have legal recompense for their failure to comply and just decide what to do once I have the final response?

[flowery]

How would them apologising for a procedural error give you more bargaining power in the meeting OP?

I think you may need to adjust your expectations. They made a procedural error in terms of very specific timescales (timescales which are scheduled to be ditched anyway this year), and have acknowledged and apologised for the error. Not sure what you think you are going to get in terms of "legal recompense" for that tbh.

Procedural errors for flexible working are worth including in a grievance or legal claim if you have a good case for direct or indirect discrimination anyway, but on their own they are pretty pointless worrying about tbh.

It's the substance of the request and the refusal (or partial refusal in your case) that is worth focusing on. As a PP has pointed out, if you bring any kind of legal claim relating to flexible working procedure, the tribunal would just order them to consider the request again, this time using the correct procedure.

[HungryHorace]

The ACAS website has a different take on it, according to their guidance.

Failure to follow procedure can be used as a reason to bring a tribunal claim in its own right and the employer can be ordered to look at its decision again and / or pay compensation to the employee.

Refusing my request could actually be sex discrimination, but until the final result is known I obviously cannot proceed on that basis.

I'll see how today goes and go from there.